Foul or Dive? Outlining the United States Women’s National Soccer Team’s Pay for Play Lawsuit

By: Alexander Karl

American women have been constantly fighting to have their voices heard and to achieve equal rights. It took until 1920 for women to receive the right to vote.[1] But it goes beyond voting as they sought to establish representation. For decades, women in the workforce have been underpaid to work in hazardous conditions. Eventually they began to strike, and in 1920, formed the U.S. Department of Labor Women’s Bureau aimed at representing the needs of wage-earning women in public policy.[2] Ultimately, laws such as the Equal Pay Act were put into place to “prohibit discrimination on account of sex in the payment of wages by employers engaged in commerce or in the production of goods for commerce.”[3] Nearly a century since the formation of the Bureau and decades since the passing of the Equal Pay Act, women are still fighting for fair compensation today.

A 2014 study reported that women were paid 79% as much as men.[4] While this number is staggering, the study did not control for the difference in type of job, level of employment, or hours worked; it simply compared full time employees for each state.[5] However, it is still clear there is a problem and the wage gap must be closed. One field where this gap is often overlooked is women’s athletics. Recently, the United States Women’s National Soccer Team (“USWNT” or “Women”) filed a lawsuit against the U.S. Soccer Federation. The USWNT claim that despite being more successful the Federation pays the U.S. Men’s National Team (“USMNT” or “Men”) significantly more than it pays the women for the same work.[6] The lawsuit has been gaining steam and has even been endorsed by members of the men’s team. Landon Donovan, arguably the best American player of all time, stated via Twitter, “USWNT absolutely deserve to be treated fairly in all ways”.[7] Although the women have support from many people, the Federation has strongly disputed these claims. This lawsuit is still relatively young and could potentially jeopardize the USWNT’s play in this year’s Summer Olympics. This article aims to layout both sides of the lawsuit in an effort to understand the best outcome for both parties.

The USWNT Claims Foul

The USWNT filed their complaint alleging they have not received equal compensation for their play and performance. Analyzing the merit of the claim is difficult because the Men and Women have different pay structures. Despite receiving a $72,000 per year salary, which the Men do not receive, the Women claim the total payment they receive is far less; their claim strictly revolves around the differences in bonus structure.[8] When analyzing the numbers, the Men receive $1,400 more per game and nearly $7,000 more per win.[9] In addition, the bonuses the Women receive for medaling in the World Cup is significantly less.[10] The complaint does not stop there: the Women allege the financial support they receive is much less than the Men, and they have numbers to back them up. In 2015, U.S. Soccer spent $30 million to run the Men’s program, compared to $11 million for the Women’s. Not only do they receive less funding, but they have been forced to play on artificial turf; a faux pas the Federation would never ask the Men to do because of injury risk.[11] In sum, the Women’s complaint states there are “no legitimate, non-discriminatory reasons for this gross disparity of wages, nor can it be explained away by a bona fide seniority, merit or incentive system or any factor other than sex.”[12] In anticipation of filing, the Women proposed a new Collective Bargaining Agreement (“CBA”) as they no longer agreed to the payment stipulations in the old CBA.[13] This caused the Federation to sue and, with the CBA up in the air, the Women have significant bargaining power as the Summer Olympics approaches.[14]

The Women’s claims are not unfounded, as they have cited statistical findings in support. Last season, the Women’s team generated nearly $20 million more than the Men’s team.[15] Furthermore, the Federation’s annual projections expect USWNT international games to bring in more revenue than the Men’s team in 2016, and significantly more in 2017.[16] While the Women lay out a detailed case, they face a stringent standard to prove they have been wronged. As highlighted by Michael LeRoy, a University of Illinois professor who teaches collective bargaining and, the market conditions of men’s and women’s sports vastly differ.[17] Furthermore, the Women have the difficult task of proving equality of work within similar market conditions.[18] Although the lawsuit has some teeth to it, the Women still have a ways to go in the battle and the U.S. Soccer Federation is not going to roll over.

The Federation Claims Dive

The Federation adamantly denies any wrongdoing and claim the Women are fairly compensated. Their argument centers around two main themes. First, they claim the Women assented twice to their current pay structure.[19] Second, the Federation claims the Women are paid proportionately to their market share.[20] U.S. Soccer initially argues they cannot be liable for unequal pay because the Women consented to the terms within their previous CBA. The Federation claims the Women wanted a more conservative structure with a set salary, rather than a bonus-ridden agreement like the Men. This argument directly ties to contract law in regards to mutual assent and consideration. The Women were clearly worried about having a set amount of pay, as evidence by their yearly wage of $72,000.[21] However, this does not seem to be enough to get the Federation off the hook. Part of the intended scope of the Equal Pay Act states an employer may not use a CBA to justify unequal pay.[22] This means the Women can file a lawsuit regardless of their agreement to the pay. The second of the Federations defenses carries more weight and the Women will have difficulty proving they were unfairly compensated for their market share. U.S. Soccer claims the Women have brought the lawsuit using skewed data, which only highlights one year of numbers.[23] They further elaborated stating, “If you look at four or eight years cumulatively, the men’s national team revenues are almost twice that of the women’s national team.”[24] However, this may be slightly overstated as within the last four years the Men have generated $60 million in comparison to the Women’s $51 million.[25] Although the numbers are slightly exaggerated, the sentiment still holds as the Men have a drastically larger following. In the last three years the Men had an average home attendance of 29,781, compared to 16,229 for the Women.[26] In addition, television viewership is much higher for the Men. The Federation’s president claims television viewership is not 30 or 50 percent higher, but rather multiple times higher.[27] Even as the Federation denies any wrongdoing, they have been open to working with the Women to address their issues. The Federation takes great pride in the USWNT, recentl winners of the 2015 Women’s World Cup, and the Federation’s President stated he has no doubt a new CBA will be reached by the start of 2017.[28]

The Referee has a Close Call

This lawsuit is still very young, and it is unclear how it will unfold. However, a general sense is that both sides want to handle this sooner rather than later. While the Women have power to potentially boycott this years Summer Olympics, their claim is centered on an extraordinary year of revenue generation. The women played, and won, a World Cup in Canada where many Americans were able to flood the stadiums. In comparison, the men participated in a World Cup in 2014. This, in turn, made 2015 a down year for the USMNT. The Federation’s argument also has its weaknesses. Although the Women agreed to their current pay and the Men have a strong control over the market, U.S. Soccer projects the Women to generate more revenue within the coming years. Because of this, the Federation must be eager to cement a deal. Finally, as mentioned above, the Women have the power to boycott the summer games and neither party would benefit from this threat coming to fruition. The U.S. Women’s National Team is the most dominant women’s soccer team in the world and wants nothing more than to add another trophy to the collection. They are constantly finding themselves with chances to win, as evidenced by finishing second and first in the last two World Cups. The Federation also prides itself in showing off the Women’s team as a powerhouse. The Men’s success pales in comparison to the Women’s, as their best ever World Cup finish was third in 1930. There is clearly some animosity between the two sides. Dowever, with forces pushing from each end to settle, do not expect the Women to stop playing anytime soon.